[Federal Register Volume 70, Number 80 (Wednesday, April 27, 2005)]
[Proposed Rules]
[Pages 21679-21682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8372]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 70, No. 80 / Wednesday, April 27, 2005 / 
Proposed Rules  

[[Page 21679]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 04-082-1]


Importation of Christmas Cactus and Easter Cactus in Growing 
Media From the Netherlands and Denmark

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations governing the 
importation of plants and plant products to add Christmas cactus, 
Schlumbergera spp., and Easter cactus, Rhipsalidopsis spp., from the 
Netherlands and Denmark to the list of plants that may be imported in 
an approved growing medium subject to specified growing, inspection, 
and certification requirements. We are taking this action in response 
to requests from the Netherlands and Denmark and after determining that 
Christmas cactus and Easter cactus established in growing media can be 
imported without resulting in the introduction into the United States 
or the dissemination within the United States of a plant pest or 
noxious weed. The proposed change would allow Christmas cactus and 
Easter cactus established in growing media to be imported into the 
United States from the Netherlands and Denmark under certain 
conditions.

DATES: We will consider all comments that we receive on or before June 
27, 2005.

ADDRESSES: You may submit comments by any of the following methods:
     EDOCKET: Go to http://www.epa.gov/feddocket to submit or 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once you have entered 
EDOCKET, click on the ``View Open APHIS Dockets'' link to locate this 
document.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 04-082-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 04-082-1.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: You may view APHIS documents published in the 
Federal Register and related information on the Internet at http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Arnold T. Tschanz, Senior Staff 
Officer, Regulatory Coordination Staff, PPQ, APHIS, 4700 River Road 
Unit 141, Riverdale, MD 20737-1236; (301) 734-5306.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation into the United States of certain plants and plant products 
to prevent the introduction of plant pests and noxious weeds. The 
regulations in ``Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, 
and Other Plant Products,'' Sec. Sec.  319.37 through 319.37-14 
(referred to below as the regulations) contain, among other things, 
prohibitions and restrictions on the importation of plants, plant 
parts, and seeds for propagation.
    Paragraph (a) of Sec.  319.37-8 of the regulations requires, with 
certain exceptions, that plants offered for importation into the United 
States be free of sand, soil, earth, and other growing media. This 
requirement is intended to help prevent the introduction of plant pests 
that might be present in the growing media; the exceptions to the 
requirement take into account factors that mitigate that plant pest 
risk. Those exceptions, which are found in paragraphs (b) through (e) 
of Sec.  319.37-8, consider either the origin of the plants and growing 
media (paragraph (b)), the nature of the growing media (paragraphs (c) 
and (d)), or the use of a combination of growing conditions, approved 
media, inspections, and other requirements (paragraph (e)).
    Paragraph (e) of Sec.  319.37-8 provides conditions under which 
certain plants may be imported into the United States established in 
growing media. In addition to specifying the types of plants that may 
be imported, Sec.  319.37-8(e) also:
     Specifies the types of growing media that may be used;
     Requires plants to be grown in accordance with written 
agreements between APHIS and the plant protection service of the 
country where the plants are grown and between the foreign plant 
protection service and the grower;
     Requires the plants to be rooted and grown in a greenhouse 
that meets certain requirements for pest exclusion and that is used 
only for plants being grown in compliance with Sec.  319.37-8(e);
     Restricts the source of the seeds or parent plants used to 
produce the plants, and requires grow-out or treatment of parent plants 
imported into the exporting country from another country;
     Specifies the sources of water that may be used on the 
plants, the height of the benches on which the plants must be grown, 
and the conditions under which the plants must be stored and packaged; 
and
     Requires that the plants be inspected in the greenhouse 
and found free of evidence of plant pests no more than 30 days prior to 
the exportation of the plants.
    A phytosanitary certificate issued by the plant protection service 
of the country in which the plants were grown that declares that the 
above conditions have been met must accompany the plants at the time of 
importation. These conditions have been used successfully to mitigate 
the risk of pest introduction associated with the importation into the

[[Page 21680]]

United States of approved plants established in growing media.
    The regulations currently allow the importation of Christmas 
cactus, Schlumbergera spp., and Easter cactus, Rhipsalidopsis spp., 
from all countries of the world, provided that the plants are (1) free 
of sand, soil, earth, and other growing media, (2) accompanied by 
phytosanitary certificate of inspection, (3) imported under a permit 
issued by the Animal and Plant Health Inspection Service (APHIS), and 
(4) imported into a Federal plant inspection station listed in Sec.  
319.37-14(b), where they are subject to inspection by APHIS. Such 
plants are imported bare-rooted into the United States, and are rooted 
and potted for sale by U.S. nurseries.
    In 1994, the governments of the Netherlands and Denmark requested 
that APHIS consider amending the regulations to allow Christmas cactus, 
Schlumbergera spp., and Easter cactus, Rhipsalidopsis spp., to be 
imported into the United States under the provisions of Sec.  319.37-
8(e). These countries currently export bare-root Cactaceae plants to 
the United States.
    The regulations in Sec.  319.37-8(g) provide that requests such as 
those made by the Netherlands and Denmark will be evaluated by APHIS 
using specific pest risk evaluation standards that are based on pest 
risk analysis guidelines established by the International Plant 
Protection Convention of the United Nations' Food and Agriculture 
Organization. Such analyses are conducted to determine the plant pest 
risks associated with each requested plant article and to determine 
whether or not APHIS should propose to allow the requested plant 
article established in growing media to be imported into the United 
States.
    In accordance with Sec.  319.37-8(g), APHIS has conducted the 
required pest risk analyses. The pest risk analyses may be viewed on 
the EDOCKET Web site (see ADDRESSES above for instructions for 
accessing EDOCKET). Copies of the pest risk analyses may be obtained by 
calling or writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.
    In the pest risk analysis titled, ``Importation of Christmas 
Cactus, Schlumbergera spp., and Easter Cactus, Rhipsalidopsis spp., in 
APHIS Approved Growing Media into the United States From the 
Netherlands,'' APHIS identified one quarantine pest that could 
potentially follow the import pathway on Christmas cactus and Easter 
cactus from the Netherlands: Fusarium oxysporum Schlechtend. f.sp. 
opuntiarum (Pettinari) Gordon (Fungi Imperfecti: Hypomycetes). Because 
the use of clean stock and phytosanitary greenhouse production programs 
provides effective control for Fusarium diseases, the pest risk 
analysis concluded that the safeguards in Sec.  319.37-8(e) would 
effectively remove that and other pests from the import pathway and 
allow the safe importation of Christmas cactus and Easter cactus from 
the Netherlands.
    In the pest risk analysis titled, ``Importation of Christmas 
Cactus, Schlumbergera spp., and Easter Cactus, Rhipsalidopsis spp., in 
APHIS Approved Growing Media into the United States From Denmark,'' 
APHIS determined that there are no quarantine pests that follow the 
import pathway on Christmas cactus and Easter cactus from Denmark. The 
pest risk analysis concluded that the safeguards in Sec.  319.37-8(e) 
will effectively remove any pests from the import pathway and allow the 
safe importation of Christmas cactus and Easter cactus from Denmark.
    Under Sec.  412(a) of the Plant Protection Act, the Secretary of 
Agriculture may prohibit or restrict the importation and entry of any 
plant or plant product if the Secretary determines that the prohibition 
or restriction is necessary to prevent the introduction into the United 
States or the dissemination within the United States of a plant pest or 
noxious weed.
    The Secretary has determined that it is not necessary to prohibit 
the importation of Christmas cactus and Easter cactus from the 
Netherlands and Denmark that are established in an approved growing 
medium in order to prevent the introduction into the United States or 
the dissemination within the United States of a plant pest or noxious 
weed. This determination is based on the findings of the pest risk 
analyses and the Secretary's judgment that the application of the 
measures required under Sec.  319.37-8(e) will prevent the introduction 
or dissemination of plant pests into the United States.
    Accordingly, we are proposing to amend the regulations in Sec.  
319.37-8(e) by adding Christmas cactus, Schlumbergera spp., and Easter 
cactus, Rhipsalidopsis spp., from the Netherlands and Denmark to the 
list of plants that may be imported established in approved growing 
media. This proposed change would allow Christmas cactus and Easter 
cactus from the Netherlands and Denmark to be imported into the United 
States in approved growing media provided the plants were produced, 
handled, and imported in accordance with Sec.  319.37-8(e) and are 
accompanied at the time of importation by a phytosanitary certificate 
issued by the plant protection service of the country in which the 
plants were grown that declares that those requirements have been met.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    We are proposing to amend the regulations to allow the importation 
of Christmas cactus (Schlumbergera spp.) and Easter cactus 
(Rhipsalidopsis spp.) from the Netherlands and Denmark in approved 
growing media subject to the growing, inspection, and certification 
requirements specified in 7 CFR 319.37-8(e).
    The United States is a net importer of live trees and plants, with 
imports of these products valued at $843.8 million in 2003. The 
Netherlands accounted for $147.1 million (17 percent) of U.S. imports 
of these commodities in 2003. In 2003, imports of live plants and trees 
from Denmark totaled $1.1 million. The value of unrooted cuttings 
imported from the Netherlands and Denmark in 2003 totaled $0.9 million 
and $0.8 million, respectively. (Source: World Trade Atlas, 2004.)
    The United States exported a total of $196.4 million worth of live 
trees and plants in 2003. The Netherlands was the second largest 
importer of live trees and plants from the United States, importing 
$33.9 million (17 percent), while Denmark imported $0.3 million worth 
of these products. Ninety-five percent of the export value of live 
trees and plants from the United States consisted of products with no 
soil attached. Exports of unrooted cuttings and slips were valued at 
$10.8 million in 2003 with $0.2 million (1.7 percent) of the exports 
going to the Netherlands and no exports to Denmark. (Source: World 
Trade Atlas, 2004.)
    In the U.S. market in 1998, the sales of potted Christmas and 
Easter cactus plants totaled $5 million, while the sales value of 
hanging baskets of these plants was $680,000. Christmas and Easter 
cactus accounted for only 0.9 percent of the total number and for only 
0.6 percent of the sales value of potted plants sold in the United 
States. As for hanging baskets of potted flowering plants, these two 
species only accounted for 4.1 percent of the total number and for 3.4 
percent of the sales value of hanging baskets sold in the United 
States. (Source: Census of Horticultural Specialties, 1998.)

[[Page 21681]]

    The Regulatory Flexibility Act requires agencies to specifically 
consider the economic impact of their rules on small entities. As 
determined by the Small Business Administration, the small entity size 
standard for floriculture production (North American Industry 
Classification System [NAICS] code 111422) is $750,000 or less in 
annual receipts. Flower, nursery stock, and florists' supplies merchant 
wholesalers (NAICS code 424930) are considered to be small if they 
employ 100 or fewer individuals. Although there is no information 
available describing the size or number of entities selling 
Schlumbergera spp. and Rhipsalidopsis spp. plants specifically, U.S. 
producers would not likely be affected by the changes we are proposing. 
Few local growers specialize in the production of the plants covered by 
this proposed rule and should be able to compete in the market due to 
the size and quality of their product. Also, U.S. producers are likely 
to stay competitive, as growers from the Netherlands and Denmark will 
have to pay additional shipping costs and phytosanitary compliance 
costs when shipping to the United States. Because of these increased 
costs, few growers in the Netherlands and Denmark are expected to 
participate in this program.
    This change would likely benefit importers and consumers in the 
United States. Because the plants would be imported in approved growing 
media instead of arriving unpotted, U.S. importers of Schlumbergera 
spp. and Rhipsalidopsis spp. would be able to sell them immediately 
after arrival. Also, U.S. consumers would benefit from an increased 
availability of the plants.
    Because Christmas cactus and Easter cactus comprise a small 
fraction of the domestic supply of potted flowering plants and 
relatively few producers in the Netherlands and Denmark are expected to 
be involved in the program, no significant change in supply or price of 
Schlumbergera spp. and Rhipsalidopsis spp. is expected.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This proposed rule would allow Schlumbergera spp. and 
Rhipsalidopsis spp. plants to be imported in approved growing media 
into the United States from the Netherlands and Denmark. State and 
local laws and regulations regarding imported Schlumbergera spp. and 
Rhipsalidopsis spp. plants would be preempted while the plants are in 
foreign commerce. Potted plants are generally imported for immediate 
distribution and sale to the consuming public, and remain in foreign 
commerce until sold to the ultimate consumer. The question of when 
foreign commerce ceases in other cases must be addressed on a case-by-
case basis. If this proposed rule is adopted, no retroactive effect 
will be given to this rule, and this rule will not require 
administrative proceedings before parties may file suit in court 
challenging this rule.

National Environmental Policy Act

    To provide the public with documentation of APHIS' review and 
analysis of any potential environmental impacts associated with the 
proposed importation of Christmas cactus and Easter cactus in growing 
media from the Netherlands and Denmark, we have prepared an 
environmental assessment. The environmental assessment was prepared in 
accordance with: (1) The National Environmental Policy Act of 1969 
(NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the 
Council on Environmental Quality for implementing the procedural 
provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations 
implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing 
Procedures (7 CFR part 372).
    The environmental assessment may be viewed on the EDOCKET Web site 
(see ADDRESSES above for instructions for accessing EDOCKET). Copies of 
the environmental assessment are also available for public inspection 
in our reading room. (Information on the location and hours of the 
reading room is provided under the heading ADDRESSES at the beginning 
of this proposed rule). In addition, copies may be obtained by calling 
or writing to the individual listed under FOR FURTHER INFORMATION 
CONTACT.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 04-082-1. 
Please send a copy of your comments to: (1) Docket No. 04-082-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance 
Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, 
SW., Washington, DC 20250. A comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication of 
this proposed rule.
    APHIS is proposing to amend the regulations governing the 
importation of plants and plant products to add Christmas cactus, 
Schlumbergera spp., and Easter cactus, Rhipsalidopsis spp., from the 
Netherlands and Denmark to the list of plants that may be imported in 
an approved growing media subject to specified growing, inspection, and 
certification requirements. APHIS is taking this action in response to 
requests by the Netherlands and Denmark and after determining that 
Schlumbergera spp. and Rhipsalidopsis spp. established in growing media 
can be imported without resulting in the introduction into the United 
States or the dissemination within the United States of a plant pest or 
noxious weed. The proposed change would allow Schlumbergera spp. and 
Rhipsalidopsis spp. established in growing media to be imported into 
the United States from the Netherlands and Denmark under certain 
conditions.
    Under this proposed rule, the plants would have to be grown in 
accordance with written agreements between APHIS and the plant 
protection service of the country where the plants are grown, and 
between the foreign plant protection service and the grower. In 
addition, the plants would have to be accompanied by a phytosanitary 
certificate issued by the plant protection service of the country in 
which the plants were grown that declares that the plants have been 
grown in accordance with the conditions set forth in the regulations.
    We are soliciting comments from the public concerning our proposed 
information collection and recordkeeping requirements. These comments 
will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of

[[Page 21682]]

appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology; e.g., 
permitting electronic submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.5714 hours per response.
    Respondents: Plant protection authorities (foreign) and growers.
    Estimated annual number of respondents: 20.
    Estimated annual number of responses per respondent: 10.5.
    Estimated annual number of responses: 210.
    Estimated total annual burden on respondents: 120 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS'' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.
    Accordingly, 7 CFR part 319 would be amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 would continue to read as 
follows:

    Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7 
CFR 2.22, 2.80, and 371.3.


Sec.  319.37-8  [Amended]

    2. In Sec.  319.37-8, in the introductory text of paragraph (e), 
the list of plants would be amended by removing the period after the 
word ``Saintpaulia'' and by adding, in alphabetical order, entries for 
``Rhipsalidopsis spp. from the Netherlands and Denmark'' and 
``Schlumbergera spp. from the Netherlands and Denmark''.

    Done in Washington, DC, this 21st day of April 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-8372 Filed 4-26-05; 8:45 am]
BILLING CODE 3410-34-P